HKSAR v. T M L

HCCC 403/2024
HCCC 404/2024
(Heard together)

[2026] HKCFI 3188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 403 AND 404 OF 2024

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: This is the sentencing in the case of HCCC 403 and 404. Now, the defendant had pleaded guilty to a total of three counts of indecent assault and six counts of rape. He had pleaded guilty in the magistrates’ court to two counts of rape in HCCC 404, and he has pleaded guilty in HCCC 403 when the case was heard before me.

The defendant is the father of Ms X, who was born in the mainland on 21 November 2003. The defendant lived in Hong Kong with his wife, and Ms X lived with her mother, who was the defendant’s mistress, and elder brother in Haifeng on the mainland. The defendant would visit her family once a week or once every few months and stay with them.

In the 1st count, it started when Ms X was only 11 years old. In May 2015, at about 1600 hours, when Ms X was

off from school and she was home with her elder brother and the defendant, the defendant suddenly hugged and lifted her and forcibly placed her on his thighs when he was sitting on the sofa in the living room, and forcibly kissed her mouth, during which he inserted his tongue into Ms X’s mouth. This 11-year-old girl tried to push the defendant away but was not successful. When the kissing stopped, the defendant told Ms X that it was normal for a father to kiss his daughter this way.

The 2nd count of indecent assault happened on the same day in the evening, when Ms X was alone with the defendant as home. The defendant suddenly entered her room and carried her to the dining table, where he forcibly removed her clothing and inserted his tongue into her mouth, squeezed her breasts and took off her pants and underpants and inserted his finger into her vagina. Ms X, only a child of 11, shouted in pain and tried to push the defendant away unsuccessfully. When the defendant stopped, Ms X immediately grabbed her clothes and ran back into her bedroom and cried. The defendant then told Ms X not to tell anybody about the incident.

Later, she found 200 Renminbi banknotes inserted into her room. She left the room and her mother told her that the defendant had left the money for her as her pocket money. Ms X, with great dignity for an 11-year-old, refused to take the money and passed it to her mother.

The 3rd count of rape was two weeks later at around noon, when Ms X was alone at home. Suddenly, the defendant entered her bedroom, forcibly removed all of her clothes, kissed her nipples and licked her vagina. Ms X resisted and tried to push him away, but in vain. The defendant then took off his trousers and underpants and inserted his penis into her vagina by force, during which Ms X felt pain. And he had then had sexual intercourse with this 11-year-old, Ms X.

And subsequently, when he cleaned her vagina, Ms X saw blood on the tissue. The defendant then warned Ms X not to tell anyone, and Ms X then kept crying inside the room. After an hour, she saw a 100 Renminbi banknote inserted into her room via the door. Now, after the incident of rape, Ms X bought a lock for her bedroom door, and every time when the defendant visited, she would lock herself in the bedroom.

Then, in September 2021, she discussed with her mother about coming to Hong Kong to look for a job, because surprisingly, her academic qualifications were not good. And that is understandable, seeing what she had to go through. And with her mother’s consent, she came to Hong Kong in 2021 and

stayed in a subdivided flat rented by her elder brother somewhere in Hung Hom. She slept on the upper bunk bed, and her brother slept on the lower bunk bed.

And this then brings us to the 4th case of indecent assault, because when Ms X arrived in Hong Kong in 2021, there was the COVID pandemic. She was forced to therefore stay at home for quarantine for 14 days. On the second day of her quarantine, at around 4 am in the morning, she saw the defendant entering the flat and slept with her elder brother on the lower bunk bed.

At about 5 to 6 am, Ms X’s elder brother had to go out to work, and Ms X kept on sleeping at the upper bunk bed. Suddenly, she felt her pants being removed and saw the defendant on top of her. The defendant forcibly removed all her clothes and inserted his finger into her vagina while kissing her. And all the time she felt painful and kept calling out “No.” After about five to 10 minutes, the defendant stopped and then left the upper bunk bed and told her not to tell anyone.

On the following day is Count 5, which is the rape. When Ms X was still having her home quarantine, again the defendant came to the flat and slept with her elder brother at about 4 am. Ms X’s elder brother then left to work, and the defendant continued sleeping. Ms X remained asleep on her upper bunk bed.

Suddenly, she felt pressure on her body, and she saw the defendant naked. The defendant forcibly took off all her clothes, and apart from inserting his finger into her vagina, he also inserted his tongue and later inserted his penis into her vagina and had sexual intercourse with her. Ms X kept resisting, but to no avail. And after a while, the defendant ejaculated on her tummy, and Ms X was scared and she kept crying on the bed. And Ms X said that she did not see any condoms on that occasion.

Then, after some time, on the very same day, again the defendant climbed to the upper bunk bed. At that time, Ms X was still naked. The defendant again forced his penis into Ms X’s vagina and had sexual intercourse with her and again ejaculated on her stomach. And then, after that occasion, the defendant then left the flat. And after he left, Ms X cleaned herself and she felt pain in her private parts and saw that her private parts were bleeding.

Then, on the 7th count of rape, on an unknown day in March 2022, when Ms X was 18 years old, the defendant brought groceries to the flat. Ms X was at that time sleeping on the upper bunk bed. And again, suddenly, she felt someone on

top of her. She saw the defendant, who forcibly took off all her clothes and underpants and then inserted his penis into her vagina and had sexual intercourse with her, despite her protestations. He also again ejaculated on her stomach and then left the flat. And Ms X then went to take a shower.

On 19 April 2022, she could not stand it anymore, so she disclosed the matter to her mother via Weixin about the fact that the defendant had raped her, first in the mainland and after she arrived in Hong Kong. Initially, her mother was angry. However, on the following day, her mother then told her she should not make any report to the police in order to protect her reputation. Subsequently, after the matter was revealed to the authorities, Ms X provided these Weixin messages with her mother to the police.

Apart from the sexual intercourse with the defendant, Ms X had no other experience of sexual intercourse.

And on 18 October 2023, in her last desperate cry for help, Ms X attempted to commit suicide. And after these matters were revealed, the defendant was then arrested on the same day.

Now, in relation to the two counts in HCCC 404, the facts were that at the time when Ms X was living in the Hung Hom subdivided flat with her elder brother, the defendant visited the subdivided flat sometime in November 2021 and slept initially with her elder brother on the lower bunk bed. After her elder brother had left the flat, the defendant came up to the upper bunk bed and whilst Ms X was sleeping and forcibly took off her clothes and underwear and started kissing her head and mouth. Ms X yelled for help and asked the defendant not to molest her anymore. In response, the defendant used his hand to cover Ms X’s mouth. Ms X resisted by kicking the defendant. However, that was to no avail.

The defendant forcibly pinned her down on the bed and forced himself into Ms X and forcibly had sexual intercourse with Ms X without using any condoms. He again ejaculated on her belly and then he left. Ms X was left in pain. When I said he left, the defendant left the upper bunk and Ms X was left in pain and was too scared to move.

About 10 minutes later, the defendant again climbed up to the upper bunk bed and pressed himself against Ms X and the defendant put a vibrator on Ms X’s genitals. Ms X told the defendant that she felt painful and uncomfortable, but the defendant insisted on inserting the vibrator into her vagina and Ms X again tried to kick the defendant and the defendant

then put away the vibrator and forcibly spread Ms X’s legs and had sexual intercourse with her without any condoms.

After that, the defendant used a mobile phone to take a photograph of Ms X’s genitals and showed it to her. Ms X was afraid and the defendant left the flat. As a result of this incident, Ms X suffered pain in her private parts for the next three days. However, as she had only arrived in Hong Kong for a short time, she had not dared to disclose the incidents to anyone at the time.

As I had already mentioned, she attempted suicide on 18 October 2023, and the matter was revealed to the police after her rescue. And under caution, the defendant admitted that he had sexual intercourse with Ms X on the upper bunk in November 2021.

These facts are totally painful and heartbreaking, particularly when it occurs consistently from the young age of 11. And also adding to Ms X’s despair was the fact that she disclosed the matter on 19 April to her mother, but she received no help at all from her own mother. And finally, in her desperate attempt to get justice, she tried to kill herself and then the matter was revealed.

I called for a victim impact report and the clinical psychologist, Ms Chan Sin-ting, has provided this report with a very cogent and detailed analysis of the victim in this case, and I am grateful to her for the very deep analysis of the psychological condition of the victim. And as Ms Chan pointed out in her findings, that the abusive incidents started when she was only 11 years old and she says, at this vulnerable developmental stage, prior to any opportunity for paternal bonding, she was violated by the very individual expected to protect her.

And she said, sadly, her brother, who was also young then, misinterpreted the defendant’s conduct as an expression of paternal affection, thereby reinforcing the client’s fear that disclosure would invite disbelief or dismissal and that the defendant systematically exploited every subsequent occasion when the client was isolated, escalating the severity, manipulation and intrusiveness of his assaults with calculated opportunism. He repeatedly warned her not to tell anyone, reinforcing her fear that no one would believe her.

And Ms Chan further said that this calculated escalation, driven solely by the defendant’s self-interest and disregard for his daughter’s well-being, underscores a profound betrayal of trust and a complete abuse of parental authority, and he had single-handedly turned her home into a

place of fear and threat. And to the extent that she was so hopeless that when she started locking herself into her room, her only escape was into the digital world in order to cope with the intense emotional pain. And this fear became so paralysing that she avoided leaving her room even for basic needs and would be showering or using the bathroom only at around the quiet hours of midnight when she believed her father would be absent.

So, not surprisingly, as Ms Chan pointed out, her school attendance soon stopped all together and she withdrew entirely, surviving only through isolation and dissociation from the world around her. And all this time, the defendant prioritised his own sexual gratification above his daughter’s safety, dignity, and future. And so, not surprisingly, as Ms Chan pointed out, she could no longer attend school or concentrate or form peer relationships or forge meaningful bonds with her mother or any relatives. And all this has left the vulnerable Ms X to feel that true safety was out of reach for her.

The fact that Ms X had requested to come to Hong Kong was with the hope that if she left her home, then she can distance herself from the defendant. However, that torment persisted, and therefore, even coming to Hong Kong, she remained profoundly isolated, struggling to form friendships or sustain any social ties. And Ms Chan pointed out at paragraph 2.5 that in order to manage this pain inside her, Ms X turned to self-harm, such as slashing her arms, redirecting overwhelming psychological suffering into tangible physical pain.

The aim of Ms X in coming to Hong Kong is revealed at paragraph 2.7 in that she wanted to pursue her interior design studies and also to work to save money. And she thought that living with her elder brother would be a potential safeguard, a protection against the abuse of her father. Unfortunately, this did not turn out to be true as she was confined to the home because of the quarantine.

And as Ms Chan pointed out, this cumulative rate of years of abuse had exacted a devastating toll on her emotional stability. And so, she was often irritable and had fractured concentration at work and fluctuating moods and therefore took off repeatedly for sick leave and struggled to maintain employment. Life had by that time lost all meaning for her and her sole connection to survival was the obligation to earn money for her mother in mainland China. And therefore, this hopelessness and emptiness had bred her suicidal intent.

However, despite her care and concern for her mother’s well-being, her complaint to her mother was not met with sufficient concern. And this was a secondary traumatisation because her mother invalidated her disclosure and prioritised familial stability over justice. And therefore, in the end, in a state of acute despair, Ms Chan says she attempted to end her life by drowning, leaving a detailed note that outlined the years of abuse intended as a final act of justice as she would no longer need to fear the consequences after death.

And Ms Chan noted that had she not been rescued and the note discovered by the authorities, no investigation would have followed. Because even at the present time of this assessment, Ms X harboured significant ambivalence about formal reporting, acutely aware that the defendant’s financial contribution was critical to the family.

Ms Chan, after such an in-depth report, then concluded that the cumulative trauma had severely impaired her well-being and deprived her of relational security and vocational identity. And she, Ms X, needs intensive trauma-informed intervention. Otherwise, these deficits would perpetuate a cycle of isolation, instability and despair. And Ms Chan performed some psychological tests on the victim and noticed that she exhibited markedly diminished self-esteem, which is directly attributable to the sustained abuses. Her adaptive functioning was severely compromised.

And Ms Chan’s assessment confirmed the diagnosis of post-traumatic stress disorder, PTSD, alongside dissociative and prominent depressive symptoms. And the recommendation of Ms Chan is that Ms X is suffering from PTSD, and it has dissociative features, pervasive avoidance and hypervigilance, and entrenched beliefs of worthlessness and contamination. And therefore, her adaptive functioning is greatly impaired, including employment instability, relational avoidance and anhedonia.

And Ms Chan concluded that the defendant’s selfish, opportunistic exploitation of paternal authority has imposed lifelong psychological harm to the client, and Ms X needs to get intensive trauma-specific psychotherapy and psychiatric intervention in order for her to survive.

Having read Ms Chan’s incisive report, this court has no doubt that Ms X has a very long road in front of her to finally diminish the dastardly actions of the defendant. And hopefully, with the help of the psychiatric community, she can find herself once again. Now, in the course of relating the events, there are moments of courage displayed by Ms X. And hopefully, she can expand her inner courage

and drive to overcome the evil abuse that has been done to her.

Every parent in our community will find this case abhorrent. And I must say that the mother of Ms X should also be thoroughly ashamed of herself for putting financial concerns above her daughter’s well-being. I recognise also that no matter how long the imprisonment of the defendant, it will never be sufficient to compensate Ms X for the pain and abuse she had suffered throughout.

However, the sentence has to reflect society’s abhorrence for these offences and also send a message of deterrence that the courts stand ready to protect the vulnerable children in our community.

After long and careful consideration, the only mitigation is that the defendant pleaded guilty, thus saving Ms X from having to give evidence.

There are no sentencing guidelines for this type of offence because every case rests on its own facts. The sentence has to reflect the moral culpability of the defendant, the abhorrence of the community, and deterrence. I cannot reflect this situation better than from the words of Stock JA, as he then was, in the case of HKSAR v KKK, CACC 504/2011, at paragraph 22 of the case. The Court of Appeal was then dealing with a case similar to this. Stock JA said:

“The judge recognised again correctly the limited assistance that sentences in other rape cases provide, since the factual matrix of each case tends so much to vary.”

However, Stock JA recognised that the principles to be addressed is one of retribution, which would properly reflect the moral culpability of the offender, denunciation to reflect the community’s disapproval of the crime, and deterrence in order to protect vulnerable children. And last of all, rehabilitation, however, as the learned judge observed, it is often overshadowed by the other principles.

Now, it is said, following paragraph 22, at paragraph 28, Stock JA said this:

“The fact of the matter is that girls in the position of the victims in this case are innocents, who commence their young lives instinctively trusting and entitled to trust the families into which they are born. They have no option but to live in the places to which they are brought after birth, and to which from time to time

they are taken. They are wholly at the mercy of their parents. The fundamental right of the child is to expect from its parents’ protection and love. In most instances in this society, that is what the child and young person receives, for that is the normal instinct of the parent.

It is painful to recognise that that instinctive protection and love is not always provided. But actual abuse of a child through physical violence or deliberate neglect is not merely at odds with that to which a child is entitled, it is a damnable breach of the trust which the child and society at large places in a parent. And since the child is not in a position to protect itself or to seek relief, society at large, ultimately through the courts, takes upon itself the duty proactively to protect the child and to visit condign punishment upon those who so abuse that trust as deliberately to harm the child.

In the circumstances of a case such as the present, the child is a captive, physically and emotionally. And it is in that light that the seriousness of a sexual offence of a child by its parent or by a person in the position of a parent is to be viewed.”

So, in considering sentence, as I have indicated, there are no sentencing guidelines. In the case of HCCC 403, the defendant pleaded guilty only in the High Court and he is therefore only entitled to 25 per cent discount.

So, having considered the facts of the case, I consider that in relation to Counts 1 and 2, the starting point should be one of 2 years, reduced to 18 months because of his plea on each count.

On the 3rd count of rape, I consider that the proper starting point would be one of 16 years, reduced to 12 years because of his plea.

In relation to the 4th count of indecent assault, a starting point of 2 years is reduced to 18 months because of his plea.

In relation to the rape counts, Counts 5, 6, and 7, again the starting point on each count would be 16 years, reduced to 12 years because of his plea.

And having also considered the totality, I would make the sentence in Counts 1 and 2 concurrent and the sentence in Counts 5 and 6 concurrent.

And in HCCC 404, because he pleaded guilty in the magistrates’ court, he is entitled to a one-third discount. And for Counts 1 and 2, I have considered that the proper starting point is one of 18 years because no condom was used and the fact also is that the defendant took a photograph of Ms X’s genitals on his mobile telephone. And I will reduce that by one-third to 12 years’ imprisonment on each count, and those two counts will be served concurrently.

Now, I have to consider the totality principle as well overall. And overall, I consider that the starting point for all overall, the sentence should be one of 24 years’ imprisonment for both cases, the total sentence. And so therefore, considering the pleas of guilty and the totality, I will sentence in the following manner.

The first two counts in HCCC 403, as I said, is concurrent. The rape is 12 years after a discount of 25 per cent. And I will make 1 year of the indecent assault counts consecutive to the rape sentence of 12 years, thus making a total of 13 years.

Then, on the 4th count, 1 year is consecutive to the 13 years for the above Counts, 1, 2 and 3, thus making a total of 14 years.

Then, on Counts 5 and 6, because it’s concurrent, and Count 7 is not, I will make 1 year for Counts 5 and 6 consecutive to the 14 years, and 1 year for Count 7 consecutive to the sentence above and therefore making a total of 16 years.

Then, in relation to HCCC 404, as I said, the sentence after the one-third discount is 12 years on each count, and I will make those two concurrent to each other. However, 2 years of that concurrent sentence will be consecutive to the 16 years in HCCC 403, thus giving us a total of 18 years’ imprisonment.

I recognise the sentence is severe, but it is necessary and important in my view to give recognition not only to the suffering of Ms X, which she will continue to suffer for a very long time, and also to express the abhorrence of our community to these types of offences. And to quote again Stock JA, as he then was, in the case of KKK, he said:

“The panoply of degradation and abuse will take the seriousness of the defendant’s conduct to a level of awfulness of its own.”

And I can only echo those words in the case of this particular defendant. I have also considered whether I need to give further discount for his plea of guilty, thus relieving Ms X from having to give evidence. I consider that is already recognised in the discount given for his plea of guilty, so I do not consider it necessary in these circumstances to give a further discount.

I have only one thing I wish to say to Ms X, and I hope Ms See, you will convey these words to Ms X, that “I recognise the acute despair that drove you to try to end your life by drowning, and leaving detailed notes of what the defendant did to you as a final cry for justice. The court has heard your cry, and hopefully that will give you the courage to rebuild your life with the help of the many kind-hearted members and professionals of our community. You are a beacon of hope for all the little girls who find themselves in a similar situation as yours, so be brave.” Thank you.